Recently, the Human Rights Committee published its views in the case Portillo Cáceres v. Paraguay (currently available only in Spanish). In this landmark decision, the Committee dealt, for the first time, with the question of the States’ duty to protect individuals from environmental degradation under articles 6 (right to life) and 17 (protection of the family) of the International Covenant on Civil and Political Rights (ICCPR). In doing so, the Committee followed the lead of several regional human rights institutions. The decision might help in strengthening the recognition of environmental protection as an element of human rights protection.

A brief summary of the case: The Communication was brought to the Committee against Paraguay by two peasant families who had been poisoned by high amounts of pesticide and insecticides used by neighbouring industrial farms. Whereas legal regulations existed that prohibited this conduct, no significant steps had been taken by the State to enforce the existing laws. As a result of the poisoning, one family member died, the others were hospitalized. Furthermore, the families suffered a loss of fruit trees, the death of various farm animals and severe crop damage. The families claimed that the State had failed in its duty to provide protection inasmuch as it has not exercised due diligence.

Protection of the Environment as a Human Right

Questions regarding the role of environmental protection in the context of human rights protection have recently been brought before several human rights mechanisms. Recently, the Inter-American Court of Human Rights (IACHR) has had the chance to define the role of environmental protection in its system (see this advisory opinion). It has not only found that there is an autonomous right to a healthy environment, but also stated that any right can be affected by environmental harm (paras. 63, 64).Read the rest of this entry…

The M/T “San Padre Pio” dispute between Switzerland and Nigeria arose following the interception and arrest by the Nigerian navy of the M/T “San Padre Pio” – a Swiss flagged tanker – while this was engaged in one of several Ship-to-Ship (STS) transfers of gasoil in the vicinity of the Odudu Oil Field within Nigeria’s Exclusive Economic Zone (EEZ). Although the facts are not entirely clear at this stage, it appears that the M/T “San Padre Pio” transferred gasoil not directly to the Odudu Terminal (for which the gasoil was ultimately intended) but to other transport vessels by way of STS transfers. These other transport vessels then transported the fuel a short distance to the Odudu Oil Field where they made direct transfers to installations located therein. Switzerland contends that the “San Padre Pio” was supplying gasoil to Anosyke, the Nigerian company with which it had a supply contract. The Odudu Oil Field is operated by Total.

Following a request for provisional measures submitted by Switzerland to the International Tribunal for the Law of the Sea (ITLOS) under Article 290(5) of the Law of the Sea Convention (LOSC), on 6 July 2019 ITLOS ordered Nigeria to release the M/T “San Padre Pio”, its cargo, Master and three officers (Order, para 146). This provisional measures order was insightfully examined by Yurika Ishii here. The purpose of this post is to examine Swiss and Nigerian arguments about coastal and flag State jurisdiction in anticipation of the Annex VII arbitral tribunal’s decision on the substance of the dispute. The forthcoming analysis will be undertaken in view of the facts as presently known and in light of the most relevant Law of the Sea Convention (LOSC) provisions.

In his Separate Opinion, Judge ad hoc Murphy considers that it is “difficult to assess whether the situation [in the “San Padre Pio” dispute] is best approached as simply a STS transfer, which normally is understood as a transfer of cargo between two seagoing vessels, or is best approached as offshore bunkering, which normally is understood as the replenishment by one vessel of a second vessel’s fuel bunkers with fuel intended for the operation of the second vessel’s engines”. Since the M/T “San Padre Pio” never provided gasoil directly to the oil field installations or to vessels for use as bunker fuel in their own propulsion, this post will consider the type of activities which the M/T “San Padre Pio” was engaged in as STS transfers, not as bunkering operations. Read the rest of this entry…

From the perspective of international environmental law, there is already a lively debate about the proposed Global Pact for the Environment, including this blog. The contributions appear more limited on the topic of the Pact’s potential impact on EU environmental law, and it is on this issue we are particularly interested. In this post, we will discuss the right and the duty to environmental protection. In our opinion, both would introduce new elements into EU environmental law, but the changes would not be radical. Accordingly, ratification by the EU should not face overwhelming obstacles. Our remarks will be based on the preliminary draft of a Global Pact for the Environment, as proposed by the Group of Experts under the leadership of Mr. Fabius.

Under Article 1 every person has the right to live in an ecologically sound environment adequate for their health, well-being, dignity, culture and fulfilment.

Article 2 provides that every State or international institution, every person, natural or legal, public or private, has the duty to take care of the environment. To this end, everyone contributes at their own levels to the conservation, protection and restoration of the integrity of the Earth’s ecosystem. Read the rest of this entry…

It was recently drawn to my attention that Tuvalu and Kiribati have in recent years passed legislation, following a relatively common scheme, that removes reference to the low tide line as the baseline for measuring maritime zones and replaces it with a system of fixed geographic coordinates. (The Marshall Islands has taken a somewhat similar approach.) On its face, this may constitute a claim that their maritime baselines are permanently fixed. That is, they will not retreat or be redrawn with rising sea levels.

This might seem a small matter in the range of legal issues implicated by climate change – it is not.

As every public international lawyer probably recalls, at least after the South China Sea arbitration, an island (within the meaning of article 121 of the UN Convention on the Law of the Sea) generates a full suite of maritime zones but must be more than a mere rock incapable of sustaining human habitation or a maritime feature which is only above water at low tide. Imagine your national territory is composed of a series of islands, some of them quite small but generating extensive maritime zones. Long before you risk becoming completely “de-territorialised” by rising sea levels you might lose much of your national livelihood if islands previously generating exclusive economic zones become mere low tide elevations.

In December 2018, the 24th Conference of the Parties (COP 24) to the United Nations Framework Convention on Climate Change (UNFCCC), took place in Katowice, Poland. The main objective of those negotiations was to finalize the so called ‘Paris Rulebook’ [the Paris Agreement Work Programme (PAWP)], which would constitute a set of rules to implement and operationalize the Paris Agreement. The issues at stakes varied from mitigation, adaptation and loss and damage, to more technical issues, such as transparency, climate finance and carbon market mechanisms under the Paris Agreement.

This post will focus on the progress made on the issue of climate finance based on an analysis of the COP 24 decision on the relevant issues. I begin by reiterating the importance of the findings presented by the latest reports of the Intergovernmental Panel on Climate Change (IPCC) and the Standing Committee on Climate Finance (SCF) under the UNFCCC. The SCF report on the biennial climate finance assessment highlighted the current methodological challenges concerning the reporting and verification of public and private climate finance, referring to the existence of uncertainties and gaps regarding the collection of climate finance data. Some of the SCF recommendations to the COP include i) enhancing the transparency, consistency and comparability of data on climate finance, ii) encouraging Parties providing climate finance to enhance their reporting of climate finance provided to developing country Parties and iii) encouraging developing country Parties that provide support to report information on climate finance provided to other developing country Parties.

One of the most ambiguous, but at the same time significant issues of the COP 24, was that of accounting and reporting on climate finance. The Paris Agreement contains two main provisions on financial flows, namely: article 2.1(c) providing for a general framework of making financial flows climate resilient; as article 9, which, apart from the general climate finance obligation, also provides for the ex-post and ex-ante finance transparency. The operationalization of the latter has been one of the main tasks of COP 24. The formal COP 24 agenda provided for the negotiation of the following matters relating to climate finance:

long-term climate finance,

matters relating to the SCF,

the Green Climate Fund (GCF),

the Global Environment Facility (GEF) and

the identification of the information to be provided by Parties in accordance with Article 9, paragraph 5, of the Paris Agreement.

The planetary boundary framework was originally developed to identify the key global processes that are essential for regulating the functioning of the Earth System and create what are effectively safe ‘buffer zones’ that might prevent humanity from crossing dangerous biophysical thresholds or tipping points. In its current version, the framework describes nine such boundaries, ranging from climate change to atmospheric aerosol loading and including freshwater use, land-use change, stratospheric ozone depletion, introduction of novel entities to the environment, ocean acidification, biogeochemical flows and, crucially, biosphere integrity. The fact that the boundaries represent the limits of what the authors call the ‘safe operating space’ for human development on a changing planet has attracted immediate interest from political scientists working on Earth System governance, and some legal scholars have progressively started to consider the concept as potentially useful for international environmental law as well.

Ever since the first elaboration of the nine planetary boundaries, the very possibility of identifying a global boundary for biosphere integrity resulting from changes in regional and local biodiversity has appeared as one of the most contentious aspects of the framework. As a result of intensive discussions to which various research communities contributed, the description contained in the original planetary boundaries paper was in fact updated in 2015,in order to capture the two key roles of the biosphere in the Earth System, and namely: (a) the importance of genetic diversity in maintaining and building its resilience (i.e. through the use of global extinction rates); and (b) the contribution of organisms’ functional traits to Earth System functioning (i.e. through the so-called Biodiversity Intactness Index). In doing so, the planetary boundary framework was also expanded to recognize the importance of sub-global boundaries that must align with the global boundary definition for biosphere integrity, owing to the fact that the ideal unit of analysis for changes in elements of biodiversity is usually situated at the level of biomes and ecosystems.

From this perspective, and subject to further scientific advancements and new data becoming available, a planetary boundary for biosphere integrity could potentially represent a very useful tool for international biodiversity law. On the one hand, because the national allocation of the planetary ‘safe operating space’ would recognize and make explicit the above-mentioned link between a global boundary and the regional, national and sub-national operating scales at which biodiversity loss occurs. On the other, and as a consequence, because the incorporation in international biodiversity law of a global boundary that might be quantifiable through critical values for one or more control variables could in theory enable changes to biosphere integrity to be used as an indicator of State responsibility, providing a powerful empirical benchmark against which to assess the respect of legal obligations relating to biodiversity (or, at the very least, a set of more precise, science-based objectives and targets that it would be more difficult for States to ignore).

The nine planetary boundaries and the status of their control variables. Source: Steffen et al. (2015)

For the purpose of the present analysis, it is less important what the control variables should be, and it should indeed be noted that identifying suitable ones for biosphere integrity remains a daunting and still hotly debated task. What is crucial is that the concept of a measurable planetary boundary for biosphere integrity clearly suggests that the related biophysical limits, once incorporated in international law, could play an important role in mitigating the procedural and/or non-enforceable nature of most international obligations relating to biodiversity within national jurisdiction (for example, the requirement to develop national strategies, plans or programmes for the conservation and sustainable use of biodiversity set in Article 6(a) of the CBD, or the obligations for in-situ conservation listed in Article 8).

The widely anticipated failure of the CBD’s Strategic Plan for Biodiversity 2011-2020 has been used as a starting point by some to advocate for a renewed ‘global deal for nature’. The Gaps Report itself, beyond its endorsement of a future Global Pact for the Environment, is especially scathing in its ‘indictment’ of biodiversity-related instruments in international law. The Report builds on years of scholarly debates in this field and focuses on, inter alia, the absence of a coherent structure of international biodiversity law, the lack of binding commitments and poor national implementation of voluntary ones, inadequate integration of biodiversity into other law- and policy-making arenas, insufficient use of ecosystem-based approaches to conservation, and lack of attention paid to interconnectedness of ecosystems within and outside protected areas.

Recognizing the need for innovative legal instruments that can capture the complexity of ecological relationships and mitigate the pervasiveness of anthropogenic interference on the Earth’s biodiversity, the international community has indeed embarked on the preparation of a post-2020 global biodiversity framework, as well as on the negotiation of a new treaty applying to biodiversity beyond national jurisdiction. What is arguably missing in both the Gaps Report and these wider intergovernmental efforts, however, is a thorough analysis of the underlying reasons that have prevented existing international biodiversity law from being effective in curbing global extinction rates and unsustainable patterns of ecosystem destruction and degradation, despite decades of legal developments and a robust apparatus of subsidiary bodies tasked with providing scientific and technical advice. Without a similar analysis, the risk of future biodiversity regimes falling back on business-as-usual approaches will probably remain very high.

In this post, I first describe one particularly problematic aspect of international biodiversity law, namely the difficulty of identifying substantive obligations (i.e. obligations of result) applying to biodiversity located within national jurisdiction despite increasing awareness about the interconnectedness of ecological processes occurring at different spatial scales. Secondly, I suggest the potential of the planetary boundaries framework first developed in 2009 by Rockström and others to provide quantifiable measures of ‘biosphere integrity’ that can help define these international obligations. Finally, I propose four ways in which international biodiversity law (including its institutional arrangements) could be used to incorporate a planetary boundary for biosphere integrity.

In October 2018, the Standing Committee (SC) of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) concluded that Japan had failed to comply with certain CITES provisions regarding the trade in Appendix I species (namely, sei whales). This blog post seeks to evaluate the relationship that such a conclusion could have on Japan’s duty to cooperate regarding the conservation of marine mammals (as required under Article 65 of the Law of the Sea Convention (UNCLOS)), and the duty to cooperate with non-binding resolutions made by the International Whaling Commission (IWC) – especially in light of the findings in the Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) Case.

The Whaling Case

In 2014, Australia took Japan to the ICJ, alleging that Japan’s Southern Ocean scientific whaling programme (JARPAII) was inconsistent with Article VIII of the ICRW. The Court concluded that JARPAII involved activities that, broadly speaking, could be scientific research but that JARPAII’s design and implementation was not ‘for purposes of scientific research’ as required by Article VIII (para. 227). In arriving at this conclusion, the Court held that Japan has a ‘duty to cooperate’ with the IWC and the Scientific Committee (para. 83). As stated by Meguro, the ICJ effectively shaped the duty to cooperate as a mechanism to bind Member States – who do not support a particular resolution – to the standards/recommendations under IWC resolutions (which, by nature, are non-binding).

Japan’s Recent Relationship with the IWC

In September 2014, the IWC (having regard to the findings in the Whaling Case) adopted a resolution indicating that no further special whaling permits be issued until they had been reviewed by the Scientific Committee and had received recommendations by the IWC. In November 2014, Japan submitted a proposal for NEWREP-A (a new research whaling programme in the Southern Ocean) in which Japan acknowledged that it had ‘taken seriously the Court’s finding that the decision to grant special permits under Article VIII, paragraph 1, of the ICRW, “cannot depend simply on that State’s perception”’. Read the rest of this entry…

The recent 30 August 2018 Chevron v. Ecuador arbitral award is yet another example of the ongoing asymmetries of protection in the much-beleaguered investor-State dispute settlement system, in which States have generously afforded protections to foreign investors to bring suits directly against States, without creating parallel avenues for affected local communities and/or indigenous peoples to initiate arbitration proceedings directly against either foreign investors or irresponsible States. Despite all our collective best efforts at ongoing reform in UNCITRAL (see updates on Working Group III’s mission on ISDS Reform here), ICSID (see their latest rules amendment project here) and elsewhere, I retain serious doubts as to whether investor-State dispute settlement could ever symmetrically represent the environmental and cultural interests of indigenous peoples and local communities, as effectively as it does investors’ claims to treaty protection and (significantly substantial) compensatory relief. Today, environmental plaintiffs have to navigate between an unwieldy, unpredictable, and quite disparate mix of remedies before domestic (administrative or judicial) courts or tribunals of their home States, potentially some regional courts (such as the Inter-American Court of Human Rights) or treaty monitoring bodies (whether those specifically created in environmental treaties or human rights treaties), other foreign courts in other countries that permit some environmental tort claims, and possibly, any cases that their home State can bring under diplomatic protection to pursue remedies against foreign nationals or the home States of these foreign nationals. And all these frequently take place in the context of abject differences of power, resources, and capacities between environmental and human rights victims as claimants against either States and/or foreign investors, vis-a-vis foreign investors as claimants or States as respondents. It’s not at all hyperbolic to observe that, with respect to the international environmental system, the deck already appears heavily stacked against environmental plaintiffs at the outset.

The most difficult aspect of the Chevron v. Ecuador case is the fact that the arbitration turned on the issue of Ecuador’s investment treaty breaches over what Chevron alleged were very troubling serious acts of fraud and corruption committed by lawyers and judges to produce a favorable 2011 Ecuador court judgment for the environmental plaintiffs. The fraud and corruption allegations have long since overshadowed the urgency of decades of environmental damage that have largely gone without significant and continuing remedy, alongside ongoing health problems from toxic contamination that have impacted indigenous peoples and local communities for generations. (Note: this pollution disaster originated long before I or generations of current international lawyers were even born.) The Chevron v. Ecuador arbitration succeeded in laying the blame on Ecuador since, for the tribunal, Chevron had already been released from its obligations of remediation under the 1995-1998 Settlement Agreements. Unfortunately, the arbitral award does not lay out any detailed environmental analysis to explain why contracts such as the 1995-1998 Settlement Agreements would be sufficient to release private parties from short-term, medium-term, and long-term remediation efforts to restore the ecosystem, and whether such releases were at all consistent with international public policy and Ecuador’s own commitments under international law (especially international environmental treaties and customary international environmental law). Neither did the tribunal explore whether Ecuador alone had the right to conclude the Settlement Agreements on behalf of all the environmental plaintiffs and affected communities, or if Ecuador could indeed effectively and exclusively represent the environmental plaintiffs and affected communities in the investor-State arbitration considering how its government agents exercised oversight (or lack thereof) with respect to the environmental disaster. Because environmental plaintiffs, indigenous peoples, and affected communities continue to be dependent on the host State of the investment to vindicate their claims against foreign investors, the investor-State dispute settlement system simply cannot lend any of these environmental, indigenous, and local plaintiffs any real, much less effective, voice over their fight to restore the Amazon to health. While plaintiffs are mired in multiple litigations and arbitrations around the world to seek accountability from either Chevron and its affiliates or their own government in Ecuador, there is virtually no dedicated State, inter-State, regional, or public-private partnership cooperative efforts to try and achieve environmental restoration in the affected 4,400 square kilometers of the Amazon, as depicted in the map below (source here):

The management of plastic waste is a global problem, but it lacks a global legal framework. In particular, the ubiquitous transboundary movement of plastic waste is of major concern; gaps in environmentally sound waste management, and often the insufficient capacity of importing States to deal with the plastic they receive, is a significant factor contributing to vast amounts of plastic making its way into oceans across the world. An international legal instrument regulating the movement and management of waste is the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention); with 186 State parties it includes all top plastic waste exporters except the United States. However, most plastic waste is not subject to the Convention.

Last week, a meeting of the Convention’s Open-Ended Working Group Meeting decided to recommend an amendment to the Convention for adoption at the next Conference of States Parties in May 2019 that would significantly widen the scope of plastic waste covered. The blog post will outline the legal implications of this important amendment, before addressing the broader question of whether the regime created by the Basel Convention, in conjunction with the Stockholm Convention on Persistent Organic Pollutants (Stockholm Convention), is the appropriate avenue for such an approach seeking to reduce the impact of marine plastic litter.